1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0037P (6th C ir.) File Name: 04a00 37p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
S TERLI NG C HINA C OMPANY , Plaintiff- Appellant

,

v.

G LASS , M OLDERS , P OTTERY , P LASTICS & A LLI ED W ORKERS L OCAL N O

. 24; G LASS , M OLDERS , P OTTERY , P LASTICS & A LLI ED W ORKERS I

NTERNATI ONAL U NION , AFL/CI O, Defenda nts-Appe llees. X - - - -
> , - - - - - - - - - - N No. 02-3773

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 01-01817—Peter C. Economus, District Judge.

Argued: October 30, 2003 Decided and Filed: February 3, 2004

Befor e: NEL SON, CL

AY, and CO OK, Circu

it Judges. 2 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

_________________ COUNSEL

ARGUED: Jeff

rey A. B elkin, BELKI

N, BIL LI CK & HARROLD, Clevelan

d, Ohio, f or Appel lant. Mimi C. Satter, SATTER & ANDREWS, Syracuse, New York
, for Appellees

. ON BRIE F: John T. Billick, Linda Hauserman Harrold, BE LKI N, BIL LI CK & HARROLD, Cleveland, Ohio, fo r Appellan t. Nancy Samone

Sokol, Ronald F. O ’Br ien, TOMAR, O’BRIEN, KAPL AN, JACOBY & GRAZI ANO, Cherry Hill, New

Jersey , for App ellees.
CLAY, J., delivered the opinion of the court, in which COOK, J., joined. NELSON, J. (pp. 20- 26), delivered a separate concurring opinion.

_________________ OPINION

_________________ CLAY, Circuit Judg e. Plaintif f, Sterli ng China Company (the “Company”), a

ppeals a June 4, 2002, order by the district court granti ng Def endants, Glass, Mo l ders, Pottery, Plastics & Allied Wor

kers L ocal No. 24, et al., (col lectively, the “Union”) its cross-motion for summary judgme

ntseeking an order enforcing a supplemental arbitration awa rd, d ated April4, 2001, which accords its union workers compensation for wor k previously perf

ormed. Plaintiff’s claim, and subsequent

motion for

summa ry judgment, asserted that the supplemental arbitra

tion awar

d is null and void , sinc e Defend ants were ti

me barred in requesting that the original arbitration

award be vacated, modified, corrected or enforced pursuant to the Ohio Revised Code §§ 2711.09 and 2711.13. Becau se the Court b elieves the supplemental award to be a clarification

not subject to Ohio Re v. Code §§ 2711.09 andNo. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 3

2 711.13, we AFFIRM the district court’s decision wh ic h enforced the supplemental award and denied theCompany’s motion for

summary judgmen t.
BACKGROUND

Procedu ral History

OnJune 3, 2001, the Company initiated this case in a complaint for Decla ratory Relief

and an Application for Order Vacating an A rbitration Award in the Common Pleas Court for Co lumbiana County, Ohio. I n Count I of its action, th e Company seeks a declaration that any actionto vacate, modif y, correct or conf

irm an ar bitration award is sued in December

of 1998 is time-ba

rred pursuant to Oh

io Rev. Code §§ 2711.09 and 2711.13, th us rendering the subsequent arbitration

award issued on April 4, 20 01 nul l an d vo id . In the a ltern ative, in Count II the Company seeks an or der pursuan t t o Ohio Rev. Code § 2711.10 vacating the arbitration

award issued on April 4, 2001. On July 26, 2001, the Union re

moved this c ase to the United States District Courtfor the Northern District of Ohio purs

uant to 28 U .S.C. § 1441 (a), asserting the action arose unde r § 301 of the Labor Management Relations Act (“L MRA”), 29 U.S.C. §185.

OnAugust 1 6, 2001, th e Union f iled it s answ er and counter claim. The counterclaim, pursuant to Section 301 of LMRA, seeks an order enforcing the 2001 arbitration

award. The parties filed cross-motions for summary judgment on December

17, 2001. On June 4, 2002, the district court issued its order deny

ing the Company’s motion for summary judgment and gr antin g the Union’s motion for summary judgment to enforce the s up plemental award. On July 3, 2002, the Company filed its notice of appe al. 4 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

Substantiv

e Facts The Company is eng aged in the production of fine pottery and chinaware at its facility

in Wellsville, Ohio. The Union, headquartered

in Media, Pennsylvania, and its local affiliate, located in Wellsville, Ohio, represent the Compan y ’s productionand maintenance employ ees. On February

6 , 1993, the Company and the Union ente red into a collective bargaining

agreement (“CBA” ) which contained a grievance procedure providing that disputes arising between the parties under the agr eement would

be submitted for

arbitration. The Company’s“Sterling China /GMP Job Evaluation System,” which is set forth in the Company’s Job Evaluati on Manua l,
was inc or

porated into Article 22, Section 7 of the CBA. Pursuant t o the Agree

ment: “[t]he

Company

has the r ight to combine present or create new job classifications. When such present classifications or new classifications are combined or
c reated, the rate

for such classifi cation sh all be sub je ct t o negotiations betw een Co mpany and Union using the [] Job Evaluation System.” (J.A. at 160-184.)

Under the system, a pos ition is assigned to a Wage Grade
com mensura

te with the de gree o f diffic ulty attache d to th e following job rela

ted fac tors: exper

ie n ce, job knowledge, initiative and in ge nuity , physical demand, menta l or visual demand, working conditions, and jo b re spo nsi bi li ti es. If

the parties cannot agree on a Wag e Grade after their evalua tion of a job, either party

may file a g

rievance.

Inthe fall of 1994, the Company be gan production of a special ty line of glost (glazed) products for the L ongaberger Co mp an y. Employees who pe rformed work on the Lon gaberg er, specifically the selection or boxing of the special ty items, were paid the Wage Grade 1 base rate of the Glost Utility position, or the Wage Grade 2 base rate of th e Glost Selector position.No. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 5

Onor about November

3, 1995 the Union filed a grievance citing the Company’sviolation of Article 22, Section 7 o f its CBA regardi ng the a ppli cable w age rate for employee s who performed

Long aberg erware

packer ’s duties, contending that the correct ratewas the Wage Grade 3 base r ate of the Glost packer p ositio n ($7.585) “plus bonus amount.” An arbitration proceeding

commenced in accordance with the g ri e vance procedures of the CBA. Arbitration hearings wer e conducted
onDecember 5, 1996, November 14, 199 7, and April 21, 1998. On December 28, 1998
, the arbi trator de livered

its opinion and

award, sustaining

the Union’s grievance, holding that the affec te d employees should be pa id “the difference between the wage rate they

received and the higher base wa ge ratethat had bee n paid to th e Glost Pac

kers” since the fall of 1994. Th e award i ndicated that the “job duties” of the “employee s who worked

on the Longaber

ger special ty it ems are ‘r easonably r

elated to the essence of the duties of the Glost Packer.’” With respect

to the “incentive rates” sought by the Union , howeve

r, th e arbi trator was persuaded by the Company’sevidence that t he affected employ

ees were not entitled to such “i

ncentive rates.” Theref ore, the Co mpan y was re qu ir ed to pa y “a ny a nd al l e mp lo ye es, wh o have performed

Glo st Pac ker wor k on th e Lo nga berge r specia lty ware since the fall of 1994, the differe nce between

the wage ratethey recei ved an d the h igher b ase wage ratethat has been paid to the Glost Packer.”

The Company objected, by letter, on J a nuary 12, 1999, becaus e the award provided back pay beyond the date

on whichthe grievance had been f iled. The arbitrator

responded that according to Article 22, section 7 of the CBA, an y change inrates of pay will be retr oacti ve to t he “dat e of th e change or newclassification,” and based on t he change or new classification

of the Glost Pack workers on the Longaberg e r special ty ware tha t occurr ed in the f all of 199 4, the re

medy is retroactive to the fall of 1994. The arbitrator also stated that 6 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

1 See section I.B, infra

. the Company’sobjectio n to the retroactive date would call for
a change in the awar

d whi ch would be contrary to the principle of

functus of ficio

. 1

Plaintiff then req uested a n audit fr om the Union of the affected employ ees’ hou rs in order to calculate back pay

. In
a letter d a ted, October 1, 1999, the Union indicated that 25 employees

worked a total of over 24,000 hours in regular and
o vertimea nd that they were still auditing the numbers. In a letter dated, October 14, 1 9 99, the Company calcula ted the pay difference at $.25 per hour and offered to pay that amount for a total of 25,000 hou

rs to acc ount for r

egular and over time hours. The Company also quoted the lang uage of the arbitration

award that held the affected employ ees were not entitled to the incentive rates.

The Union wro te back i

na letter dated November 4, 1999, stating that the affected employ ees wo rke d 19,001.625 straight hours and 2,359.5 overtime hours on the Longaber ger work and th at the Union

did not “share [the C ompany ’s] interpretation

of the arbitrator’s award.” B y letter dated N ovember

15, 1999, the Company offer ed to pay th e difference between the Wage Grade 1 r ate an d the W age Grade 3 rate, which was $.26 per hou r fo r straight time and $.39 per hour for overtime, which to taled $5,860.63, according to the Company

. OnDecemb er 22, 19 99, the Un io n wrote a letter to the arbitrator, carbon copy

ing the Company, whic

h stated: “It is [our] understanding that

you are retaining jurisdiction. As of this date, the

parties have not reached agree ment as to the proper remedy. The

refore, we are

requestingavailable dates for the purpose of

getting y our opinion regarding the remedy after appropr iate arg uments ha

ve been ma de.” OnNo. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 7

December 27, 1999, the Company responded to the Union’s letter, stati ng t hat th e arbitrator’s award was clea r and unambiguous with regard to the issues involving back pay and that there was no need or basis for an addit ional hearin g. Ina letter to the arbitrator, the Union stated: “Contrary to the position taken by [the Company ’s co uns el], an amb iguity does exist concerning the interpretation of the remedial portion of your a

ward,” an d tha

t the U nion “ think s [] a h earin g is necessary

to establish the precise compensation paid to Packers during the back pay period.” Thereafter, the arbitrator con ve ned a supplemental hearing on October 22, 2000.

It was the Company’s position that the arbitra tor had no authority to hold an additional hearing, accept additional evidence or issue a supplemental decision or award ; therefore, the Company made no appe arance excep t to object to the proceedings in their entirety

. The arbitrator issued a supplemental award on April 4, 2001. The decision summarized the previous award and the position of the p arties; then the a rbitrator explaine d his previous intentions :
Inorder to equal the wage ra te equal to Glost Packe r ’s rate, by nece ssity the L ongaberger e mployees are required to be paid the s ame rate as the Glo st Packers, rather than a rate which is $3 an hour lower than the Glo st Pa ck er . M or eo ve r, I al so in cl ud ed in my awar d that the ‘grievance is sustained.’ By sustaining the grievan ce, I have s ustained the Union’s requested remedy which included the $3 add-on. (J.A. at 259-262).

Inresponse

to the Compa

ny’ s claim tha

t the Uni on’s request was precluded by

the doctrine of

functus of ficio , the 8 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

arbitrator explained, “[t]he doctrine of functus of ficio prohibits r eopeni ng the merits of the dispute between the p arti es. . . . I am not determining an issue involving the merits whichhave already been decided.” Id. The arbitrator continued to point out tha t he ret ained jurisdiction of the procee din gs, “should any disputes arise be tween the parties with r e spect to the implementation of this remedy.” Therefore, the arbitrator maintained that the supplemental award clarified the original award and

the doctrine of

functus officio di d n ot ap pl y.
DISCUSSION

We review de novo the district court’s grant of summary j udgmen t. Beacon Journal Pub. Co. v. Akron Newspaper Guild, Local No. 7 , 114 F.3d 596, 599 ( 6th C ir. 1997). Summary judgm ent is proper when there are no g enuine issues of mat erial fact in d ispute an d the movin

g party is entitled to judgment

as a matter of law. Fed.R.Civ.P. 56(c). Indeciding a motion for summary judgment , the court mus t review the evidence and draw all reas onable inferenc es in favor of the nonmoving party

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). T he judg e is

n ot to weigh the evidence and deter mine the truth of the matter, but rather determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).

Alth ough this court requires a de novo review, the deferencethat federal courts must give to the settlement of a labor dispute by an

arbitra tor is subst

antial. DBM Tech., Inc.,

v. Local 227, United Food & Comme rcial Worker Int’l Union , 257 F.3d 6 51, 656 (6th Cir. 2 001). The Supreme Courthas made clear that courts must give an ar bitrator’s decisionsubsta

nti al deference since it is the arbitrator’ s constructionof the co llective barga in ing agreement, not the
cou rt’s construction, to which the parties have agre ed

.No. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 9

Wy andot, Inc. v. L ocal 227, United Fo od & Commerc ia l Work ers Union , 205 F.3d

922, 928-29 (6th Cir. 2000) (citing United Paperworks Int’l Union v. Misco , 484 U.S. 29, 37-38 (1987)). Indeed, an ar

bitrator’s factual errors a nd even misinterpretations of a collec tive bargaining agr eement are not subject to reconsideration by the court. Id

. I.

A. The Applicatio n of the Ohio Revised C

ode’s St atute of Limitations

The Union removed this case to federal cour t s ince the actionarose under § 301 of the LMRA. Actions filed under § 301 of the LMRA are s

ubject to the appr opriate state statute of limitations , since it c on tains no federal limitations provision of i ts own. Aloisi v. Lockhead Martin Energy Syste m s , 321 F. 3d 551 , 556 ( 6th C ir. 20 03) (ci ting United Parcel Serv. v. Mitchell

, 451 U.S. 56, 60 (1981)). Th e appropr iate statute of

limitations

uti l ized in an Ohio case seekingto challenge a pa rty moving to vac ate, modify, or correct an arbit ration a ward is the Ohio Rev

is e d Code (“O.R.C.”) § 2711.13, United Steel Workers of America, Local 4839 v. New Idea Farm Equipmen t Corp. , 917 F.2d 964, 967 ( 6th Cir. 199 0), which provide s: [a]fter an award in an arbitration proceeding is made, any party to the arbitration may

file a motion in the court of
commonpleas for an

orde r vacating, modify ing, or
corr ectin g the award as prescribed in sections 2711.10 and 2711.11 of the Revised Code. Notice of a motion to vacate, modify, or corr

ect an award must be served

upon the ad ve rs e p ar ty or his attorney within three months after th e award is delivered to the parties in interest, a s prescribed

by law for se

rvice of notice of motion in an action. 10 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

Al te rn at iv el y, in order t o confirm a n award once final, parties must move under O.R.C. § 2711. 09, Id. , which provides : [ a]t any time within one y ear after an award in a n arbitration

proceeding is made, any party to the arbitration

may apply

to the court of co mmon pleas for
anorder confirming the award

. Thereupon, the court shallgrant such an order and ente r judgment thereon, unless the awa

rd is vacate d, modified, or corrected as prescribed

in sections 2711.10 and 2711.11 of the Revised Code. Therefore, the prope r characterization of the action determines its timeliness. New Idea , 917 F.2d at 967.

The Company as serts that any action taken by the Union, at this time, is

barred by t he O.R.C. s tatuteof limitation. The Company f urther argues that the arbitrator was without author ity to re-hear this dispute and re-issue another arbitration

decis ion. Ho wever, as this court stated in New Idea
, the proper characterization of the events in the instant
c a se is necessary

to determine timeliness and the proper authority. Id. We will dea l with timel iness first.
After the first arbitration award was issued in December of 1998, the part

ies went b ac k and forth for almost a y ear disput i ng the proper application of the issued remedy . The Unionunderstood the arbitration’s conclusion to require that Longaber ger workers be equitably

compensated to the degree that the existing Glost Packers have been compensated since the fall of 1994, which included more than the $.26 per hour difference as determined by the Job evaluation c hart

. Ap pa re nt ly, the $3/per hour “add on” that was requested, and clarified inthe supplemental arbitration award, was part of the compensation

the Union understood to be included in t h e difference in wage r

ate.No. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 11

2 O.R. C. §§ 2711.09 an d 2711.13 spec ifically requ ire pa rties to file motions with t

he cour t of com mon pleas w ithin the t ime fr ame indic ated in the lan guage of t

he st atut e to g uaran

tee each pr ovis ion’ s re spe ct ive relief. There is no indication i n the stat utory langua ge that the se t ime frames affect a party’ s abi li ty to r econci le c lar if ications of

an aw ard w ith its arbitra tor. N ev ertheless, the ini tial inquiry by the Union to the arbi tra torrequest ing cl arif icat ion wa s w ithin one y ear of the arbi tra ti on
a ward, thus not preclud ing mand atory confirmation upon a possi bl e motio n, purs uant to O.R .C. §2 711 .09, b y the U nion if the y so cho se. Ad ditiona lly, the Company argu es t hat a requ est

for clari fica tion does not eff ect ively “to ll” the statute of limitatio ns for the filing of a subsequent motion to vacate, modify, correct or confirm, ci ting Galion v. Am. Fed ’n o

f State, C ty. & Mun. Emp. Ohi o Co unc il 8, AFL- CIO, Local 2243 , et al.
, 64 6 N. E. 2d 813 , 81 5- 16 (1 999 ). Th is matt er does not involve an issue of “tolling,” nor did t he Union att empt to modif y, va cate, correct or c onf ir m th e August

1998 award, by way

of a moti on under O.C. R. §§ 271 1.09 or 271 1.13. Fur thermor e, Galion is distinguish able since the arbi tra tor the re di d not r etai n jur isdi cti on to clarify ambiguities, whereas in the instant

action, t he arbitrator did ret ain such authorit y. The Court need not analyze the parameters of a sit uation where the arbi tra tor does retain juri sdiction under the sa me factual scena rio as Galion , si nce the instant case differs in both respec ts. Co nv er se ly, the Compan y’ s underst

anding was that t

h e difference in wa ge rate it was ordered to pay the Union employ ees, merely included the $. 26 /per hour increase as determined

by the Job E valuation chart, since the arbitrator made a point in the initial a rbitrati on awar

d to state t

hat h e was “persua

ded by the Compan

y’ s evidenc e with re spect to the reasons for

not applying the inc entive rate to the Packer’s work in the L ongabe

rger ware.” F or these reasons , clarification

of the ar bitration award w as necessa

ry to move forward in the proceedings. B y way of literal interpretation, clarification of an awar

d is neithe

r contro lled by

O.R.C. §§ 2711.09 nor 2711.13. 2

Tr ad it io na ll y, if an ar

bitratio n award is

ambiguo us and in need of clarification, courts are made to re mand back to the arbitrator to clarify its meani

ng and inte nt. M & C Corp. v. 12 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

Erwin Behr GMBH &

Co. , 326 F.3d 772, 782 (6th Cir. 2003) (holding that a “remand is proper both at common law and under the federa l l aw of arbitration contracts, to clarify an ambiguous aw ard or

to require the arbitrator to address an issue submitted t

o hi m but not resolved by the awa rd” (quoting Green v

. Ameritech Corp. , 200 F.3d 967, 977 ( 6th Cir. 2000))). Although, the Union’s request for clarifica tion did not come thro ugh a request to remand in the federal courts, it is important to recognize that the part ies involved needed cla

rification before any

appropriate recourse of f

edera l
or state actions b ecame

necessary

. See New Idea , 917 F.2d at 969 (citi ng United Steelworkers v. Timken R oller Bearing Co. , 324 F.2d 738, 740 (6th Cir. 1963) (holding that a “court is not required to e nf

orce an award that is not cl ear as t o its meaning”)). Therefore, the Union did notviolate the three mo nth statute of limitations to vacate, modify or corr ect an arbitration award under O.C.R. § 2711.13 since the Union did not request suc h a remedy . Additionally, the Union did not violate the required one-y

ear time fra me in which to receive
a guaranteed confirmation of an a rbitration award under O.C.R. §2711.09, as that also was not the requested re me dy. The Union did

request, however, clarification of the award, as its remedia

l meaning

was clea

rly in disp ute. To fully understand

the breadth of the arbitrator’s power to clarify, we visit the issue as to whether or not the ar bitrator exceede d his power in clarifying

and subse quently

issuing a supplemental award.

B. The Arbitrator’

s Powers Unde r the Doctrine of Functus Off

icio

The doctrine of functus officio is defined as “having fulfilled the function, discharged the office, or a ccomplished the purpose, and theref

ore o f no further force of authority .” Ameritech
, 200 F. 3d at 9 76 (qu otin g B LAC K ’ S L AWNo. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 13

D IC TI ONARY 673 (6th ed. 1990)). This doctrine has specific ally

been appl ied to the breadth of an arbitrator’s authority wherea s in “most c ases arb itrators ’ appoint ments continue until the y hav e heard the case, made a fina l award, and disclosed it to both part ies . At this time their task is performed, their duties under the arbitration agree ment are discharged, and their

arbitr al authority is at an end.” Id

. (citing III M AC N EIL , S PEIDEL & S TIPANOW ICH § 37.6.1.1 , at 3 7: 25). However, the doctrine of functus officio contains several exce p tions, such as (1) where the arbitrator can “correct a mistake which is apparent on the f ace of t h e award; ” (2) where “the award doe s not adjudicate an issue whichhas been

submitted, then as to

the iss ue the arbitrator has not exhausted his function and it remains open to him for subsequen t determination;” and (3) where “the award, al tho ugh seemingly c omplete, leaves doubt whether the submission has been fully e xecuted, an ambigui ty arises whichthe arbit

rator is entitled to clarify .” Industria l Mut. Ass’n, Inc. v. Amalgamated Work ers, Local No. 383 , 725 F.2d 406, 412 n.3 ( 6th C ir. 19 84) (q uoti ng La Vale Plaza, Inc. v. R.S. Noonan, Inc. , 378 F.2d 569, 573 (3d Cir. 1967)). This Courthas recognized the need for an a rbitrator’s “clari ficatio

n o f an ambiguous award when the awa rd fails to a ddress a contingency

that later arises or when the award is suscep tible to more than

one interpretation.” Ameritech , 200 F.3d at 977 (citing Glass, Molders, Po tter y, Plastic s &Allied W

orkers Int’l Union, Local 182B v. Excelsior Foundry, Co. , 56 F.3d 844, 847 (7th Cir. 1995) (“holding that uncertainty in an arbitrat ion aw ard regarding whic h party would pay

for the employee’s

rehabilitation justified the arbi tra tor’s extension of the deadline fixed in the original award, and explaining that t his question ‘can fairly

be characterized’ as ‘interpre tive
, ’ [thus] ‘allowing [the plaintiff] to crawl through the loophole in the doctrine of functus officio for clarification or completion, as distinct from alteration of the arbitral award.’”)). 14 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

The Company disputes the Union’ s reliance on cases like the Seventh Ci

rcuit’s Excelsi

or Foundry

case, and t his Court’s Ameritech case, claiming they are disti nguisha ble to the instant action; however, the district court was correct

in its view that the ar

bitrator in this case fell squarely within the
au th or it y, followed

by t his Court, to properly cla

rify the orde

r at i ssue. Very muc

h in line with Excelsior , the par ti es her e were confronted with an unexpe c ted contingency after the award was issued: the ma

tter of the exact definition of the “hig her base rate” that would be equivalent to the rate received by t he Wage 3 Glost Packers ’ position sin

ce the f all of 1994. The Company can not say that the required remedy
was “clearly

determined” by

the original arbitral award when the parties were clearly

in dispute as to the interpretation of the remedy, a

nd there was no numerical determination in the award. Furthermore, the arbi

trato r’s retention of jurisdiction further suppo rts its actions as falling squarely within the exceptions of the doctrine of functus officio . The December arbitral award concluded with the arbitrator ’s a ssertion that he “retains jurisdiction sho uld any disputes arise be tween the parties with respect to the implementation of th is rem edy. ” In correspondencefrom both parties, the arbitrator’s retention of jurisdiction was acknowledged, theref ore leaving this issue unchallenged.

C. The Valid ityof the April 4, 2001 Supplemental Arbitral Awar

d

Al te rn at iv el y, even if a clarification was within the arbitrator’s power, the Company arg ues that the supplemental award exceeded that power and should be vacated, claiming it was issued in violation of O.R.C. § 2711.10 (D), whic h states in p ertinen

t part:No. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 15

[I]n any of the f

ollowing cases, the court of common ple as shall make an order vacating the a ward upon the application of any pa

rty to the arbitration if:

. . . . (D) The arb itrators

exceed their powe

rs, or so imperfe ctly

executed t hem that a mutual, final and definite award u pon th e s ubject matter submitted was not made.

Inorder to determine whether or not the arbitrator exceeded his powers we must acknowledge the bre adth of those powers, and how they we re applied. As stated ab o ve, the arbitrator has the power under the exception of the doctrine of functus officio to go back and “cl arify”

an ambiguous or incomplete portion of an

award. Behr , 326 F.3d at 782. Now
we look to the difference between the Dec ember 1998 arbitration

award and the April 2001 arbitration award t o determine whether or not the latter is in fact a cla rification.

As to the original December 1998 awar d, the Union asserted that the r emedy portion was unc lear regarding precise ly how much each

affected Longaberger

Packer w ould receive in compensation based on the arbitrator’s analy sis of the two jobs, the Longaberger Packers and the Glost Packers of traditional ware, and its acknow ledgm ent of the ir eq ui va le nc y. The ambi gu ity arises in what see ms to be the original award’s denial of any incentive rat es above and beyond the documented base rate for a Wag e 3 Packer, as set forth i n the Job Evaluation Manual. The arbitrator acknowledged

that the Union failed to submit evidence regarding the application

o f the inc entive r

ate to the Glost Packer work on th e Lon

gaber ger wa re, while

als o ac kno wledging

that the Company submitted persuasive evidence on the reasons the incentive should not be applied. Nevertheless, the incentive rate wa s never d efined i n the firs t 16 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

award
, nor w as the “higher base rate” to which the Longaberger

Packers w ere e ntitled, making suc h compensation

equivale nt to the tr

adit i onal Glost Packers, as expressed by the ar

bitrator.

Inthe supplemental awar d in April 2001, the arbitrator clarified the dispute over what the “higher base r ate” encompassed. Since it is undisputed that the original award increa se d the L ongaberger ra te to Wage Grade 3, the real questi onwas whether or not that included what the Un io n assumed to be a $3 per hour “add o n” rate. T he Company argues that the $3 “add on” rate is the e quivalen t to the incentive rate to which the original arbitration awar d did not assent. By

applying this ra

te in the supplemental award, the Company ar gues t he award was altered or cha nged, thus violating O.C.R. § 2711. 10.

Con ve rs el y, the Union

argue s that the $ 3 “add on ” is subject to different

criteri a than the incentive rate and that the “add on” was necessary

to complete what would have been an incomplete award. As clari f icatio n, the April 2001 award defines its previous award as to the exact

amount en

titled to the Long aberg er Packe

rs. The a rbitrator specif

ically st at es that “in th e award I refer to the ‘h igher b ase wage rat e’ that has been paid to the Glost Packer. I do not refer to the Gr ade III wage rate of

the Gl ost P acker . . . The higher base wa ge rate includes the $3 add

on whichhas been

paid to the

Glost Packers for a period of y

ears. ” (J.A. at 260). The arbitrator furth er clar ifies his aw ard by sta ting: [ i]tis i mportant to underscore that I r efer to the Longaber ger employees wa

rranting a La

bor Gra de I II position and a wa

ge rat e equal to the Glost Packers’ rate. Inorder to equal the wage ra te equal to the G lo st Packers’ rate, by

necessity the L

ongaberger emp lo ye es are require d to be pai d the same rateas the Glo st

Packers
,No. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 17

rather than a rate which is $3/ho ur lower tha n the Glost Packer. (J.A. at 260).

The arbitra

tor final ized his cla

rificat ion by st atin g that he acknowledged

his refusal in applying

the incentive rate to the award; however, “in making [that] statement, the ince nt ive rateis to be distinguished from the $3 add on which replaced the incentive rate and

which has been paid to Glost Packers.” (J.A. at 261). Therefore, given the ne ed for the awar d’s clarification

with resp ect to the pr op er co mp en sa to ry r em ed y, inaddition to the arbitrator’s power to properly go back and clarify any inconsistencies of

interpretation, the supplemental award is appropriate and valid under O.C.R. §2711.10 (D )

. Becau se th e a rb it ra to r’ s a ut ho ri ty a llows for clarification of
an awar d subject to multiple interpretations, the issuance of the supplemental awa rd was well within the arbitrator’s power and was not subject to any

limitations

found in O .R.C. §§ 2711.09 or 2711.13.

II.

The Company additionally argues that

the arbitrator’s 2001 award mus t be vacated because it fails to draw its essence fromthe CBA. However, in the instant ca se, the arbitration award is not a violation of the arbitra tor’s expr ess authority

as it does draw its essence from the CBA.

This Court’s jurisdiction to review an arbitrator’s decision is predicated on an allegation that the arbitr ator reached an
erroneous decision. Teamster Freight Emp. v. Bow lin g Green Express, Inc. , 707 F.2d

245, 256 (6th Cir. 1983). We review the ar bitrator’s decision only to deter mine whether the arbitrator was “arguably

construing or apply

ing the contract and act in g within the scope of his authority .” Misco , 484 U.S. at 38. If the arbitrator’ s award “draws its essence from 18 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

the bargaining agr

eement,” and is not merely the arbitrator’s “own brand of indu strial justice,” the award is legitimate. Beacon , 114 F. 3d at 5 99 (qu otin g United Steel Workers of Am. v. Enterpr ise Wheel & Car Co. , 363 U.S. 593, 597 (1960)). An arbitrator’s award fails to draw its essence from the agr eement w hen: (1) it conflicts with express terms of the agr eement; ( 2) it imposes additiona

l require ments not expres sly

provided for in the ag reemen t; (3) it is not rationally supported by
or derived from the a greement; or (4) it is based on ‘general considerations of

fairness and equity ’ instead of the exact terms of the agreement.

Id. at 600 (quot ing Dallas & Mavis Forwarding Co. v. Local Union No 89 , 972 F.2d 129, 134 (6th Cir. 1992)).

It is indisputable thatthe CBA included the term “add on” t her ein, with reg ard to wa ges. (J.A . at 35-36 ). It is also indisputa ble that payment of a “base w age” is not the so le
means of compensation allowed f or in the CBA. By specific ally

stating the mean s by

which the

Company

must
a ccur ately

compensate the Long aberger Packers (sinc e the intention was to require equivalent compensation), the award itself did not conflict with express terms of the agreement or imposeadditional requirements not expressly provided

for in the agreement. See Wyandot, 205 F.3d at 929 (holding that the arbitration award violated all four factors that dictated its
au th or it y, as it viola

ted expre ss timeline ss provisions, imposed broad mandatory

accommodations for all written arbitration

dem ands , inaccurately found the grievance arbitrable, and ignored the prec ise terms of the agr eement in favor of equity, thus clear

ly departing

fromthe essence of the agreement and was appropr iately vaca

ted).

The Company

terms the suppleme

nta l aw ard, referencing the $3 add on, as a misinterpretation of its meaning within theNo. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 19

CBA. Nevertheless, courts ultimately cannot weigh th e merits of the grievance or re verse simply be cau se they disagree with the r

esult of the interpretatio n of the arbitral award. Beacon , 114 F.3d at 599-600. Given that the intent of Article 22, Section 7 of the C BA was t o ensure that all workers would be accurately compensated

for changed duties that would in certain circumstanc e b e unknown to the worker s, it follows that the supplemen tal arbitration award fulfillsthat intent by clarify ing the prescribed compensation due to the L ongabe

rger workers. Theref

ore, whe ther th e arbitrator correctly determined the award or no t, t he district court’s ruling may not be reversed on review since the supplemental award u

ltimate ly dre w its essence from the CBA.

CONCLUSION

For the aforementioned

reasons , this Court AFFIRMS the district court’s order. 20 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

_____________________ CONCURRENCE

_____________________ DAV ID A. NELSON, Circuit Judge, concurring . I agre e that the Union ’s effo rt t o enforc e the 2001 version of the arbitra tio n a ward is barred neither by the functus of

ficio doctrine nor by the Ohio statute of limitations to which we must look in the absence of an applica ble federal statute. Enforcement

would be barred, however, if the dec ision rendered by the arbitra

tor in 2001 , inst ead of b eing a clarification

of a point left ambiguous in the 1998 awa rd, constitutes a reversal of the “incentive rate ” portionof that award. I write separa tely to outline my reasons for concludingthat

the 2001 decision is in fact a clarification of the ear lier awa rd and no t a reve

rsal.

Ibegin with the collective bargaining ag reement, Article 21 of which establishes certain “base wag e rates,” eff ectiv e February 15, 1993, for each

of six different wage grade s. (An appendix to the agreement

parce ls out numerous individual job classifications am ong th e six wage grades; under the h eading“Glost War

ehouse, ” the app endix ident if ies a “Packer” classification that is assigned to “Wage Grade# 3”

— albeit at a highe r hourly rate ($ 7.35) tha

n most other wage g rade 3 jobs.) Article 21 goes on to prescribe a ser i es o f “general wage increases” that a

re to be “added to t he base daywork rate” and “factored into base inc entive ra tes” in accordancewith a time

table set forth in

the agreement. As far
as the “Packer” cl assi fica tion is concerned , the appe ndix provides for per

iodic increa ses that c

ulminate in a base rate of $7.67 per hour effective August 12, 1996.

The traditional glost packer job was an “incentive job,” as company o fficial Eric Fa

dale evi dently

explained

in testimony before the arbitrator. The traditional glost packersNo. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 21

1 Th is decla ration w as intend ed to app rise the d istrict cou rt of th e subst ance of testi mony given by Fadale before the arbi tra toron Apri l 21, 1998. The distr ict court ques tionedwhether “dec larations” can be giv en any considera tion in summary jud gment pro ceedings, since Rule 56(c), Fed. R. Civ. P., auth oriz es con side rat ion of “af fi davit s,” not declarations. Under 28 U.S.C. § 1746 , however, an u nsw orn decl ara ti on ha s t he s ame force and eff

ect as an af

fi davit if it reci tes — as Fadale ’s decla rat ion does

— that it was ex ecute d “und er pe nalty of p erjury.” initially received incentive pay

geared to “down

time and the amount of cart ons that we

re pack ed in a g iven ti me frame,” according to a declarati on executed by Mr. Fa dale in December of 2001. 1

Inhis 1998 award sustai ning the union’s grievance, the arbitrator held that altho ugh the employees who had packed Longaber ger ware we re entit led t o the wage grade

3 rate for glost packer work, they were

not entitled to the incentive rate:

“I am persu aded by

the Compan

y’ s evidenc e with respect to the reasons for not apply ing the incentiv e rate to th e Pa cke rs’ wor k on Long abe rge r wa re. In establishing an incentive rate, the mechanized nature of the Glost Packer’s work

on tra ditional ware is a factor whichis entitled to gre at weight. Moreover, also of importance to the esta

blishment o f an ince

ntive wage rate
are such factors as a time study , proper sequence of the job and the a

llowance s whic h are made, for example, with respect to ‘downtime’ or ‘machine breakdow ns’. Alth ough these factors are of gr eat weight in establishing
an incentiverate for the Glost Packer of traditional ware
,

. . . the employees who ha ve worked on the Long aberger
ware are entitled to the same base wage r ate as the Glo st Packers of tradit

ional war e. Accordingly

, emplo ye es who have performed the L ongaberger job since the fallof 1994 [when the Longaber ger line was introduced], are entitled to receive the difference between the ba se wage 22 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

ratethat they were

paid and the higher base rate that has been paid to the Glost Packer of traditional ware.” (Emphasis supplied.)

The evidence by

which the arbitrator was persuaded that the inc enti ve rate ap

plicable to traditi onal glo st packe rs should not be applied to Longabe rger workers is summarized in the Fadale declar ation as f ollows:

“In good industrial enginee ring practices, incentive sys tems ar e not p ortable. They cannot be moved from
one job to the next just as a result of similarity. I

ncentive sys tems are designed for a spec ific job; they are based on the parameters of that job such as the a mo unt of work that is being done if i t is a piecework plan, parameters suchas down time that would be incurred on the jo b, different things lik

e that. The equipmen

t would he lp dri ve the setup

of it; it may

not be a pa

rameter inth e d etermination

of monies from the incentive sy stem, but it would be a

factor insetting up the initial incentive system.”

The incentive pay sy

stem for traditional glost packers was changed, at some po int in time, to a system that simply

added
a fixed dolla

r amount to

the pack ers’ hou rly base rate. As the Fadale declaration explains,

“The numbers that were ty pically arr

ived at as a result of [the origina l] inc entive system [were] turned into an hourly amount as a result of

the existence of the previous i ncentive system. That amount is added on to th e packers’ base rate.”

Becau se the amount of

the add-on ($3 per

hour) approximated numbers that had typically been produced under the incentive system designe d for the

traditional glo st packing line, Mr.No. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 23

Fadale maintained that the add-on “could not be transferred” to the Longaber

ger work.

The arbitrator

clearly was persuad

ed that th e incent

ive rate could not be transferred
, but it is not clear that he was persuaded

the $3 add

-on could not be transferred either. The company ar

gues in its brief on appeal that the add-on “ is the incen tive r ate,” but Mr. Fadale himself drew a distinction between the variable numbers genera ted by the incent

iv e system an d t he fi xe d n um be r b y whic h the base rate was increased after the incentive system was turne dinto a fixedhourly -amount s yst

em.
If I thou ght that the arbi trator un derstood the chan ge in system s to ha ve occurred before the fa ll of 1994, when the company began producing items for L ongaberger, it would be difficul tfor me to avoid the conclusion that in saying the incentive ratecould not be applied to the Longaber

ger work, the arbitrator must have meant that the $3 add-on could not be so applied. If there wa s no longer a true incentive

sys tem in place when the Longa

berger line was introduced, what cou ld the arbitrator possibl y ha ve been refer ring to, when he held “the incentiv e rate”

inapplic able to Longabe rger workers, othe r than the add-on that had evolved from the incentiv e sys tem? If, on the other

hand, the arbitrator

understood that the incentive system was still being used in the fall of 1994, it is conceivable that the arbitrator was focusing on that system and was not focusing on the $3 add-on tha t subseque ntly replac ed it.

Ihave found nothing in the r e cord est ablishing what (if
an y) evidence was presented to the arbitrator as to wh en th e variabl e incentive pay was replaced by the fixed add-on. Reading the arbi

trator’ s award s with

the deferencethat must be accorded them, however, I conclude that the arbitrator must have understood the change to have occurred after the startup of the Long aberg er li ne. And if that is what he 24 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

thought, I believe

that what the arbitrator said in 2001 can be reconciled with what he said in 1998.

The arbitrat or did not say, in 2001, that L ongaberger workers were e

ntitled to t

he incen tive rate that the packers of traditional glost ware were receiving, ex hypo thesi
, in the fa ll of 1994. I nst ead, as I understand him, he was say ing that wh enthe pack

ers of tr aditiona l ware be gan re ceivin g a composite

rate determined by

adding a flat $3 per

hour to the base pay specified in the collective bargaining agr eement, the Longaber ger worker s were e

ntitled to b egin

re ceiving the
same composite rate. The original decisionnot having made it clear whether

Long aberger workers would or would not receive the compo site rate once it was introduced for workers handling the tradition al pr oduct, the arbitrator could have gon e either w ay

on this que stion witho

ut contra dictin g th e original award.

I mys elf might think it wrongheaded, after deny ing Longa berger

workers the incentive pay received by

the i r counter parts on the tra

dit ional p roduct line, to award the Longaber ger people the $3 add-on when it replaced the incentive pay. I

t was not my opinion, however, by which the parties to the colle ctive ba rgaini ng ag reemen t underto ok to be bound; what they bargained for was the arbitrator’s opinion, notmine. And I am

not so sure

it would be

unreasonable to conclude that

the considerations which precluded the transfer of a fluctuating incentive rate did not apply to the transfer of
a rate which, un

like the in

centive rate, ne ver fluctuated in accorda nce wi th output or

downtime. In a

ny e vent, this is precise ly the sort of

determination

the parties agreed to let the arbitrator make. Regar dless of one’s o pinion as to its soundness, the 2001 decisionwas, in my

judgment, a clarification

of an amb iguity inthe original award. As such, for re asons ably explained

inNo. 02-3773 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. 25

Judge Clay’s opinion, the 2001 decisiondoes not run afoul of the functus of

ficio doctrine.

Under Ohio cas elaw, mor

eover, t he union’ s reques t f

o r enforcement

of the arbitral award as clarified does no t run afoul of Ohio Revised Code § 2711.0 9. B ecause the statut e uses the word “ may” i n providing that within a one year period after an award has been ma de “any party to the arbitration

may apply

to the cou rt of common pleas for an order confirmingt he award,” an Ohio court of appea ls has held that “the common pleas court ha s the discretion to p ermit summary applica ti on [for “confirmation,” which has the
e ff ect of turning the award into a court judgme nt] within a
reasona ble time beyond one y

ear for good cause shown, if no prejudic e occurs to the opposing party . . . .” Russo v. Chittick
, 548 N.E.2d 314, 317 (Ohio App., Cuyahoga
, 1988). Here there was good cause for the union’s delay

in applying for enforcement

of the 1998 award, and the company was not prejudiced

by t he delay . As far a s the 2001 d ecision is concerned, of course, there was no delay; the de cision is dated April4, 2001, and the union filed its enforcement application on August 16, 2001.

Ohio Revised Code § 2711.13, which says that a f ter a n arbitration

award has been

made any

party to the proceeding “may file a motion in the court of common pleas for an order vacati ng, modifying or c orrecting the award,” uses mandatory langua ge in establi sh ing a de adline: “ Notice of a motion to vacate, modify , or

correct an award must be serve d uponthe adverse party or his attorne

y within three months after t he award is de live red to the parties in interest . . . .” Russo provides no escap e from the three- month

deadline for service of a motio n to correct an award. I do not read the union’s counter claim as asking for correction of the a w ard at i ssue h ere, however . What the u nion aske d for wa s a court o rde r “enforcing

the arbi trator’ s awar d . . . .” Ohio Revised Code 26 Sterling Ch ina Co. v. G lass, Mold

ers, Pottery, Plastics &

Allied W orkers Local No. 24

, et al. No. 02-3773

§ 2 711. 13 has no application to a judicial enforcement procee ding.

For all of the foregoing reasons, I concur in the affirmance of the jud gment r endere d by

the distri ct court

.